83 F.

3d 431
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Roger A. DICKENS, Plaintiff-Appellant,

v.
EQUIFAX SERVICES, INC., a Georgia corporation,
Defendant-Appellee.
No. 95-1217.

United States Court of Appeals, Tenth Circuit.

April 22, 1996.

ORDER AND JUDGMENT1

Before KELLY and BARRETT, Circuit Judges, and BROWN, ** Senior
District Judge.
BARRETT, Senior Circuit Judge.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

Plaintiff Roger A. Dickens appeals the district court's order granting summary
judgment in favor of his former employer, defendant Equifax Services, Inc., on
his claims under the Age Discrimination in Employment Act (ADEA), 29
U.S.C. 621-634, the Colorado Employment Practices Act, Colo.Rev.Stat. 2434-401, and for promissory estoppel.

Mr. Dickens was employed by Equifax for approximately thirty-two years from
1960 until January 1993. Until January 1992, Mr. Dickens was employed in

Equifax's Phoenix, Arizona office. In 1991, he was approached regarding his

interest in a position in the Denver, Colorado office as an assistant manager, the
same position he held in Phoenix. Mr. Dickens alleges that in order to secure
his interest in the Denver position, he was promised a promotion, a salary
increase, participation in a bonus program, and a better outlook for his
remaining years with Equifax. Mr. Dickens accepted the Denver position and
moved to Denver in January 1992. Equifax paid all of his moving expenses and
the commission on the sale of his Phoenix home.
4

At the time Mr. Dickens was offered the Denver position, Equifax was
undergoing reorganization and downsizing which had started in 1990, and
continued until June 1992. In June 1992, a new executive in charge of field
operations was appointed, resulting in another restructuring. As a consequence,
Denver was divided according to product lines with a nonresident manager in
charge of each product nationwide. Mr. Dickens' position as assistant manager
of the Denver office was eliminated, and he became the assistant manager of
the special investigations unit in Denver under the supervision of the Seattle,
Washington regional manager. His work load dropped substantially, as there
did not appear to be a need for his position in the Denver office.

Mr. Dickens was terminated on January 5, 1993, his fifty-fifth birthday. This
also was the date his pension vested under Equifax's retirement policy. Prior to
his termination, he was offered a position as a supervisor, allegedly in order to
give him the opportunity of remaining with the company and improving his
retirement position; because a supervisor position would have been a demotion,
he refused.

Following Mr. Dickens' termination, a new chief executive officer for Equifax
was appointed, resulting in another new management structure whereby
employees in a department would choose the person they wanted to head the
department, with the choice being subject to management approval. The head
of the department was known as the "city leader." In March 1993, two months
after Mr. Dickens' termination, the Denver office chose Michael Lynn as city
leader. Mr. Lynn held this position until November 1993, when he left the
company.

In his complaint, Mr. Dickens alleged that Equifax discriminated against him
because of his age by placing Mr. Lynn, a younger person, in the position of
city leader. He also claims damages based on his reliance on the alleged
promises of Equifax when he accepted the Denver position. The district court
granted summary judgment to Equifax on all claims. Mr. Dickens appeals, and
we affirm.

I. Standard of Review
8

We review the district court's grant of summary judgment de novo. Jones v.

Unisys Corp., 54 F.3d 624, 627 (10th Cir.1995). Summary judgment is
appropriate if "there is no genuine issue as to any material fact and ... the
moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
When applying this standard, we examine the factual record and reasonable
inferences therefrom in the light most favorable to the nonmoving party. Wolf
v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995). The nonmoving party
must produce sufficient evidence to withstand summary judgment and to
require submission of the case to a jury. Jones, 54 F.3d at 628. "We affirm the
district court's decision to grant summary judgment if the record contains any
basis to do so." Id.

II. Age Discrimination Claim

9

ADEA plaintiffs may establish discrimination indirectly through the three-part

standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and its progeny. MacDonald v. Eastern Wyo. Mental Health Ctr., 941 F.2d
1115, 1119 (10th Cir.1991). Pursuant to McDonnell Douglas, the plaintiff bears
the burden of establishing a prima facie case of discrimination. Id. (citing Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). In order to
establish a prima facie case of age discrimination, a plaintiff must show that "
(1) he was within the protected age group; (2) he was doing satisfactory work;
(3) he was discharged despite the adequacy of this work; and (4) he was
replaced by a younger person." Marx v. Schnuck Markets, Inc., 76 F.3d 324,
327 (10th Cir.1996). The discharged employee is not always replaced in a case
where the adverse employment decision is as a result of a reduction in force.
Therefore, the fourth element of the prima facie case has been modified to
require the plaintiff to "produc[e] evidence, circumstantial or direct, from
which a factfinder might reasonably conclude that the employer intended to
discriminate in reaching the decision at issue." Ingels v. Thiokol Corp., 42 F.3d
616, 621 (10th Cir.1994)(further quotation omitted).

10

Once a plaintiff meets this burden, "the employer must offer a facially
nondiscriminatory reason for its employment decision." Randle v. City of
Aurora, 69 F.3d 441, 451 (10th Cir.1995). "At the summary judgment stage, it
then becomes the plaintiff's burden to show that there is a genuine dispute of
material fact as to whether the employer's proffered reason for the challenged
action is pretextual--i.e. unworthy of belief." Id. If the plaintiff presents such
evidence, the case is not proper for summary judgment, and the motion must be
denied. Id.

11

Here, it was undisputed that Mr. Dickens was within the group protected by the
statute, and that his work was satisfactory at the time of his termination. The
district court determined that the fourth element of the prima facie case,
whether Mr. Dickens was replaced by a younger person, was a disputed fact.
The court concluded, however, that the role of assistant manager was distinct
from that of city leader, and therefore, Mr. Lynn, who became city leader seven
months after the assistant manager's position had been eliminated and two
months after Mr. Dickens was terminated, did not replace Mr. Dickens. The
court stated that even though the city leader position incorporated many of the
duties formerly performed by the assistant manager, "no reasonable trier of fact
could find that Equifax would endure two corporate reorganizations simply to
terminate Dickens because of his age," and that Mr. Dickens had presented no
evidence that "he would have been selected by his peers as the city leader."
Appellant's App. at 326. The court therefore held that Mr. Dickens failed to
meet his summary judgment burden as to the fourth element of his prima facie
case.

12

On appeal, Mr. Dickens argues that the district court improperly resolved a
disputed issue of material fact as to whether Mr. Dickens had been replaced by
a younger individual. Whether the district court erred in so holding, however, is
a point we need not decide because the district court, recognizing that some
conflict on this point existed and fulfilling its responsibility to construe disputed
facts in favor of the nonmoving party, presumed that Mr. Dickens had
established his prima facie case, and continued the analysis.

13

Assuming that Mr. Dickens established a prima facie case, we next look at
whether Equifax articulated a legitimate, nondiscriminatory reason for
terminating Mr. Dickens. See MacDonald, 941 F.2d at 1119 (the establishment
of a prima facie case creates a presumption of unlawful discrimination that
requires the defendant employer to come forward with legitimate,
nondiscriminatory reasons for the adverse employment decision). Equifax
proffered that Mr. Dickens termination was due to restructuring, the need for
downsizing, and poor financial performance. Equifax contends that the
assistant manager position Mr. Dickens held in Denver was eliminated in June
1992, and not refilled. Equifax further asserts that at this time, Mr. Dickens' job
was excess, but he was kept on in order to allow his pension to vest.

14

The district court concluded that Equifax had proffered legitimate

nondiscriminatory reasons for Mr. Dickens' termination. There appears to be no
dispute regarding the legitimacy of the downsizing. The court found that
Equifax had closed twenty-eight regional offices and one hundred-ninety-six
district offices during 1990 and 1991. At the time of Mr. Dickens transfer from

Phoenix to Denver, production in the Phoenix office was down, and following
the restructuring in June 1992, Mr. Dickens' work load was greatly reduced.
15

If the employer offers evidence of a legitimate nondiscriminatory reason for the

challenged decision, "the presumption of discrimination established by the
prima facie showing simply drops out of the picture." Ingels, 42 F.3d at 621
(quotation omitted). At the summary judgment stage, the plaintiff must then
show direct evidence of age discrimination or that the defendant's legitimate
nondiscriminatory reason is a pretext for discrimination. Id. at 621-22. "A
plaintiff demonstrates pretext by showing either that a discriminatory reason
more likely motivated the employer or ... that the employer's proffered
explanation is unworthy of credence." Marx, 76 F.3d at 327-28 (quoting Rea v.
Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir.1994))(further quotation
omitted).

16

Here, Mr. Dickens has failed to show any direct evidence of age discrimination.
In an effort to show pretext, Mr. Dickens first argues that his December 1992
termination letter, which states that his termination is part of a "downsizing"
due to "poor financial performance," indicates a December 1992 reorganization
never occurred, and that his position should have been unaffected by the June
1992 reorganization which did occur. On the contrary, the June 1992
reorganization eliminated Mr. Dickens' Denver position. Equifax asserts that
the reason he was not terminated until December 1992 was in order to allow his
pension to vest.

17

Next, Mr. Dickens contends that the district court did not consider the report of
a certified public accountant, Edward J. Meier, who, following a review of
financial documents of Equifax, Inc. for the years 1991 through 1994, opined
that the company was in a "strong financial position." Appellant's App. at 291.
Mr. Dickens asserts that this report belies Equifax's stated reason, "poor
financial performance," given for terminating him. See id. at 35.

18

In response, Equifax asserts that Mr. Meier's report concerns the financial
condition of Equifax, Inc., a holding company, and does not reflect the financial
condition of defendant Equifax Services, Inc., one of the separately
incorporated subsidiaries of Equifax, Inc. Also during a deposition, Mr. Meier
admitted that he had not reviewed any financial statements of Equifax Services,
Inc. Id. at 318.

19

Mr. Dickens contends that the district court did not consider his allegation that
there was a "strong possibility" that his termination was part of an ongoing

policy of age discrimination. Appellant's Br. at 14. Although he alludes to

several hearsay statements, including a statement regarding an alleged company
preference for young, aggressive individuals,2 he proffered no evidence that
Equifax had engaged in age discriminatory practices in the past, or that others
were terminated because of age. See Cone v. Longmont United Hosp. Ass'n, 14
F.3d 526, 530 (10th Cir.1994)("[A]llegations alone will not defeat summary
judgment); Jones, 54 F.3d at 632 (stray remarks made by people not in
decision-making positions do not establish an intent to discriminate).
20

Mr. Dickens failed to show, by competent evidence, that the reasons given for
his termination were unworthy of belief. See Cone, 14 F.3d at 530. Interpreting
Mr. Dickens evidence in the most favorable light, we conclude that Mr.
Dickens could not persuade a reasonable jury that Equifax had discriminated
against him on the basis of his age. See Jones, 54 F.3d at 632. Summary
judgment was therefore appropriate on his ADEA claim

III. Promissory Estoppel

21

Finally, Mr. Dickens argues that the district court erred in granting summary
judgment on his promissory estoppel claim. Mr. Dickens asserts that he relied,
to his detriment, on certain promises made by his supervisor prior to his
relocation from Phoenix to Denver. He contends that Frank Hinds, his
supervisor in Phoenix, promised that (1) he would continue to have a career
with Equifax until age sixty-five, (2) he would be promoted if he moved to
Denver, (3) he would receive annual pay increases and annual bonuses, (4) the
amount of his bonus would compensate for his loss of his wife's income, (5) he
would be a manager in Denver, (6) he would be taken care of by the company,
and (7) he would remain employed by the company. The court concluded that,
as a matter of law, no reasonable jury could find that Mr. Dickens reasonably
relied on these alleged promises regarding his future with the company if he
took the Denver position, or that these statements even rose to the level of
promises.

22

Under Colorado law, "[a]n employee who is hired ... for an indefinite period of
time is an 'at will employee,' whose employment may be terminated by either
party without cause and without notice, and whose termination does not give
rise to a cause of action." Continental Air Lines, Inc. v. Keenan, 731 P.2d 708,
711 (Colo.1987). An at-will employee may prevail under a theory of
promissory estoppel by showing that (1) the employer should have expected the
employee to view employment policies as a commitment from the employer to
follow those practices, (2) the employee reasonably relied on those policies to
his detriment, and (3) injustice can be avoided only by enforcement of the

policies.3 Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1466 (10th Cir.1994)
(applying Colorado law); Continental Air Lines, Inc., 731 P.2d at 712. A
plaintiff must show the existence of a promise upon which he could reasonably
rely. Id. at 711-12.
23

Although Mr. Dickens' arguments on appeal are not the picture of clarity, it
appears that he is contending that Mr. Hinds' statements were binding on
Equifax. He asserts that, in reliance on Mr. Hinds' statements regarding what
Mr. Dickens' employment situation would be in Denver, he gave up his position
in Phoenix, sold his home, his wife quit her job, and he moved to Denver. Mr.
Dickens argues that Colorado law as set forth in Cronk v. Intermountain Rural
Elec. Ass'n, 765 P.2d 619 (Colo.Ct.App.1988), cert. denied (Colo. Nov. 28,
1988), precludes the grant of summary judgment in a case where a supervisor
makes representations as to future events. Mr. Dickens oversimplifies and
misunderstands the holding in Cronk.

24

In Cronk, the plaintiff, a public utility employee, sought a transfer from a

management to a nonmanagement position because he could no longer support
the alleged illegal policies of his superior. The plaintiff claimed that his
immediate supervisor promised him that he could request the transfer without
retaliation. He was fired just prior to the transfer for unsatisfactory
performance. Id. at 621.

25

Under Colorado law, a public policy exception to the general rule regarding
terminable-at-will employees protects an employee who was discharged for
exercising an enacted right or duty. See Farmer v. Central Bancorporation, Inc.,
761 P.2d 220, 221 (Colo.Ct.App.1988), cert. denied (Colo. Sept. 6, 1988).
Because disputed issues of fact existed as to whether the plaintiff in Cronk was
discharged for exercising an enacted right or duty, and also as to whether the
employer's employment manual created an employment contract binding the
employer to the manual's terms, the court held that summary judgment was
improper. 765 P.2d at 622-23. Such is not the situation here, and therefore, as
the district court correctly determined, Cronk is distinguishable.

26

In conclusion, we agree with the district court that Mr. Hinds' statements were
not sufficiently definite to be legally enforceable promises for purposes of
establishing promissory estoppel. See Continental Air Lines, Inc., 731 P.2d
708, 712 (plaintiff must make sufficient preliminary factual showing to
overcome presumption of at-will employment). They were little more than
vague assurances or unsupported predictions, and as such, were not statements
upon which Mr. Dickens could reasonably rely. See id. Therefore, the district
court was correct in granting summary judgment to Equifax on Mr. Dickens'

promissory estoppel claim.

27

The judgment of the United States District Court for the District of Colorado
granting summary judgment to Equifax is AFFIRMED.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

**

Honorable Wesley E. Brown, Senior District Judge, United States District

Court for the District of Kansas, sitting by designation

We note that on appeal, Mr. Dickens failed to direct us to where in the record
these alleged remarks appear. This court, therefore, is unable to ascertain the
nature or context of these statements. See S.E.C. v. Thomas, 965 F.2d 825, 827
(10th Cir.1992)(in the absence of reference to the record, this court will not
"sift through" the record to find support for a party's arguments)

In his complaint, Mr. Dickens asserted that Equifax had wrongfully terminated
his employment in derogation of its own personnel manual. The district court
determined that Mr. Dickens had failed to set forth any provision of the Equifax
employment manual which guaranteed length of employment, procedures for
termination, provisions for salary, salary increases, bonuses, or benefits. Mr.
Dickens appears to abandon this claim on appeal